Drake v. Drake , 11 Johns. 531 ( 1814 )

Per Curiam.

The justice having made return of the cause that was in fact tried before him, and error having been assigned, and issue joined thereon, no objection can now be made to the cause being entitled wrong in the certiorari. The evidence of payment offered by the defendant, ought to have been received. It was an action of assumpsit, and a direct payment of the demand was admissible under the general issue. Had the payment set up been by matter of set-off, it should have been pleaded, or notice thereof given at the time of joining issue. But if the defence set up was admissible under the general issue, the defendant was not bound to disclose it until the trial. The judgment must be reversed.

Judgment reversed.